Toronto Estate Law Blog : Toronto Estate Lawyer : Hull & Hull Law Firm : Trust Mediation and Succession Planning : Serving Ontario, Ottawa, Mississauga, Hamilton

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In the days prior to the evolution of the Internet, planning and administering an estate was relatively simple as the physical belongings of the deceased could be carefully sorted through, packaged, and divided according to the Deceased’s testamentary document or the applicable legislation.

In the days since the  Internet has become a common household tool, planning and administering an estate has not been so easy. In a study commissioned by Remember A Charity, The Dying in a Digital Age, it was discovered that four in five people own digital assets, but only nine per cent have considered how these will be distributed upon their death.

According to the study, the nation's digital music collection is worth an estimated £900 million alone.

Three quarters of those surveyed for the study indicated that their digital music and photo collections had strong sentimental value, while eight out of ten said their digital assets were financially valuable.

Rob Cope, director of Remember A Charity said: ''Bank accounts, music and photograph collections are increasingly stored online…meaning families will wave goodbye to a small fortune if details are not passed on.”

There is now an entire cyber existence that both the Deceased and Trustees need to turn their mind to when planning or administering an Estate. For instance, what will become of Facebook, Twitter, Flickr and PayPal accounts? One easy solution is to subscribe to a website called Legacy Locker. Legacy Locker was created in 2009 and it maintains a master list of user names and programs for online bank accounts, social networking sites and document repositories. 

In the digital era, it is important that we consider and make arrangements for how our digital assets will be distributed, and for estate planners, it may be just as important that you consider including in your questionnaire or checklist, a question that forces a client to turn their mind to consider their digital assets. 

Thank you for reading, and have a great weekend.

Rick Bickhram - Click here for more information on Rick Bickhram.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In a recent court decision, the Honourable Justice Stinson considered a motion from competing family members for the appointment of an estate trustee during litigation.

In Buswa v. Canzoneri, the Deceased died without a Will on September 29, 2010. The Deceased did not have a spouse and was survived by seven siblings, and two children.

The concern in this case was that the Deceased did not leave anyone with legal authority or responsibility to arrange his funeral and dispose of his remains.

Two of the Deceased’s siblings, the Applicants, applied for a Certificate of Appointment of Estate Trustee Without a Will. The daughter of the Deceased, the Respondent, also applied for a Certificate of Appointment of Estate Trustee Without a Will.

In his decision, the Honourable Justice Stinson considered the legal interpretation of section 29 of the Estates Act, which reads as follows:

As the Deceased did not have a spouse, the court considered the definition of “next of kin.” In the Black’s Law Dictionary, “next of kin” is defined as “the person's nearest of kindred to the decedent, that is, those who are most nearly related by blood.”

Applying these concepts, the court held that the Respondent daughter was related to the Deceased by blood in the first degree, whereas the Applicants siblings were related to the Deceased in the second degree. Accordingly, the Respondent daughter was appointed as the Estate Trustee During Litigation.

Thank you for reading, and have a great day.

Rick Bickhram - Click here for more information on Rick Bickhram.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Within the next twenty years, Canada's baby boomers are in line to inherit a substantial fortune, which will represent the largest transfer of wealth from one generation to the next.

In an article written by Jennifer Power Scott and published in Canadian Living, Ms. Scott discusses the  bittersweet bonanza that many heirs face and cautions the impulsive spender: "There are a lot of people in this world who might go out and blow the whole thing in a week, and that's not appropriate. Unless you're well-heeled to begin with, flushing the funds into trips to Las Vegas, sexy cars and plush home theatres probably isn't the smart way to go."

In her article, Ms. Scott stresses the importance of carefully planning what to do with your inheritance, so that your inheritance can turn into a gift that lasts. Ms. Scott urges those who have received a windfall inheritance to:

1. Take a breath. Put your inheritance somewhere safe that earns a good guaranteed rate of interest for a few months while you think things through
2. Once you are ready to make a decision, speak to a certified financial planner
3. Consider your option, such as satisfying outstanding debts, investing into an RESP for your children, or an RRSP or RRIF for yourself

Essentially Ms. Scott's article forces her readers to consider their long-term goals as opposed to their short-term goals. "It pays to step back a little bit. Some people will immediately say, I've got this money, I don't deserve it all, and maybe I should start helping out my kids right away. But they need to make sure that their financial future is properly secured before they do that."

Thank you for reading, and have a great day,

Rick Bickhram - Click here for more information on Rick Bickhram.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I hope everyone had great holiday season.

With the close of 2010, we turn and look to the promise of 2011. In looking ahead to 2011 many may wonder if they have properly protected and provided for those they intend to protect should something unexpected happen to them. Questions may also arise regarding whether a spouse or parent has taken steps to provide for themselves and/or those they intend to provide for.

While there are no doubt many things to consider for the new year from a family perspective, perhaps this is the year to resolve to consider, or reconsider, whether your family’s legal affairs have been properly planned.

I wish everyone a healthy, happy and prosperous 2011.

Craig R. Vander Zee - Click here for more information on Craig Vander Zee.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Having an open conversation with your parents about their financial matters and the importance of estate planning is never an easy task. Medical studies have indicated that people who have lived through the Great Depression prefer to keep their financial affairs to themselves. This presents a challenging task for loved ones trying to discuss with their parents financial matters and particularly who is best equipped to handle their finances if they are unable or how they expect to pay for long-term care should the need arise.

The New York Times recently published an article entitled, “Talking with Depression-Era Parents About Money”. In this article, Tara Siegel Bernard, the author, suggests the different ways that adult children could broach the topic with their parents such as:

Show and Tell: “Adult children could talk about their own estate plans - a show and tell”. This forces the parent to give thought to their children’s estate plan and opens the door for the child to ask how the parents have handled their own affairs.

Parental Duty: “Appeal to their duties as parents.” 

Bring in a Pro: “Some parents may also feel more comfortable discussing their financial situation in front of a disinterested party, like a long time accountant, lawyer, or financial planner.” It appears that Ms. Bernard suggests having a disinterested party present could help the parent feel more secure, which likely would have the effect of the parent opening up about their financial matters. This sounds like a good idea; however, a word of caution, this suggestion also could lead to estate litigation, as arguments of undue influence could be advanced in the circumstances.

Timing: “Make sure you choose a good time and place to bring up the topic”. Obviously, having this sort of discussion at the family holiday party is not a good idea.  

Thank you for reading and have a good day.

Rick Bickhram - Click here for more information on Rick Bickhram.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The basic principle governing health care treatment of patients is that treatments should not be administered in the absence of the patient's consent, or where the patient is incapable the patient's substitute decision-maker: section 10 of Ontario's Health Care Consent Act ("HCCA").  The onus is on the health practitioner to decide whether the patient is capable and can give consent.  The range of persons within the HCCA's s. 2(1) definition of "health practitioner" is broad. 

A person who wishes to dispute the finding of incapacity by the health practitioner may apply under section 32(1) of the HCCA to the Consent and Capacity Board (the "Board") for a review of the health practitioner's finding that a person is incapable with respect to the treatment.  The Board may confirm the health practitioner's finding or may determine that person is capable.  Section 80 of the HCCA allows a party to appeal Board decisions to the Superior Court.  The court may exercise all the Board's powers, substitute its opinion for that of the health practitioner's, or refer the matter back to the Board with directions for rehearing in whole or in part.     

The standard of review for the Board's decision is correctness with respect to its interpretation of the law, and reasonableness with respect to its application of the law to the facts, since the issue of incapacity is a mixed question of fact and law: Starson v. Swayze, 2003 SCC 32 (CanLII), [2003] 1 S.C.R. 722.  Absent demonstrated unreasonableness, there is no basis for judicial interference with findings of fact or the inferences drawn from the facts.  This means that the Board’s conclusion will be upheld provided it is among the range of conclusions that could reasonably have been reached on the law and evidence. 

Courts tend to carefully review appeals from Board findings of incapacity.  In Starson v. Swayze, the Supreme Court upheld the trial judge's overturning the Board's finding of incapacity.  The trial judge examined the extent to which the conclusions drawn by the Board were supported by the evidence from the examination, and concluded they were not reasonably so.  In Re Koch, the Board's finding of incapacity was overturned.  Again, the court found that the conclusions of the Board were not supported by the evidence from the examination.  Also, the examination itself was insufficiently probing to support the conclusions drawn.  In Hillier v. Milojevic, 2010 ONSC 4514 (CanLII), the court allowed an appeal of the Board's finding of incapacity where the hearing had not been conducted in an procedurally appropriate manner.  The allegedly incapable person had not been given sufficient time to answer questions, had been questioned rapidly in a manner that disrupted his train of thought, and had to attend the hearing without his glasses and a computer on which he relied for organization.  The court returned the matter to the Board with directions to conduct another hearing with the assistance of an amicus curaie.

Have a great day,

Christopher M.B. Graham - Click here for more information on Chris Graham.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In an aging society, our elderly can easily fall prey to predators looking to exploit them. Elder abuse can take many different forms: physical, psychological or financial abuse, or simply neglect.

I read an article yesterday about Huguette Clark, the 104 year old heiress whose wealth is estimated at half a billion dollars. During her lifetime, Clark made generous gifts towards those who cared for her. For instance, it is reported that Clark gifted $10 million dollars to her social secretary. 

It is reported that Clark’s wealth is being managed by her lawyer and her accountant. 

A former paralegal who worked for Clark’s attorney, has now blown the whistle on what she alleges is improper behavior by Clark’s attorney and accountant. According to reports, it is alleged that they “drafted a will that would have left money to [one of them], trying repeatedly to persuade her to sign it — then joked about their client and cursed her behind her back when she would not sign the will.” It is also reported that her lawyer allegedly solicited from Clark $1.5 million dollars to build a security system for a community where his daughters and their families live. In addition he allegedly sold a Stradivarius violin for $6 million dollars and a Renoir painting for $23.5 million. 

A criminal investigation has now been launched by the Manhattan district attorney, who has the Elder Abuse Unit of the New York County District Attorney's Office looking into the handling of Clark's finances.

It bears repeating that the complaints at this stage are unproven allegations. Nonetheless, the mere thought that this could happen provides us with a dreadful reminder of what the elderly face in our society today.

Thank you for reading,

Rick Bickhram - Click here for more information on Rick Bickhram.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Chinese real-estate tycoon, Yu Pengnian, announced this past April that he was donating the last $500 million of his fortune to his charitable foundation on philanthropy. He was asked by a reporter, whether his children were angry about his donations and responded by stating: “They didn’t oppose this idea, at least not in public.”

|It is not uncommon for billionaires to donate their fortune. For instance, Warren Buffet and Bill Gates started a campaign called "The Giving Pledge." At that time, they had four billionaires pledge to give away half of their fortune upon their death.  Now there are 40. My colleague, Nadia Harasymowycz, recently blogged on this topic, which can be found here: Leaving it all to Charity – A Good Plan or an Estate Litigator’s dream.

The idea of giving away your fortune is a strong shift from the traditional idea of passing down your wealth, from generation to generation. Why this switch in estate planning? Yu stated: “If my children are competent, they don’t need my money. If they’re not, leaving them a lot of money is only doing them harm.”

Yu’s message to wealthy families put simply: “Too many wealthy parents focus on preventing their children from failing. But in doing so, they also deprive their children of the joys of self-made success.”

Thank you for reading,

Rick Bickhram - Click here for more information on Rick Bickhram.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Over the weekend, I was reading some international publications, when I came across a rather interesting article in The New York Times about Ben Novack Jr., and his Batman collection.  Novack is said to have the second largest, Batman themed collection, in the country.  To give you an idea of how big this collection is, Novack is said to have a full-size replica of the Batmobile!

About one year ago, Novack was found murdered at a hotel in New York, where he was staying with his wife.  The hotel records showed that no one had entered the hotel room with a key before the killing of Novack.  Novack's wife reported to the police that "she went down to breakfast about 7 a.m., leaving him asleep. When she returned 40 minutes later, she said, she found him bound and bloody on the floor."  Given the hotel records, and other circumstantial evidence, the police did not believe Novack's wife. 

It is reported that her goal was to seize control of Novack's fortune.  How much was his estate worth? $5-6 million dollars! 

Earlier this year in February, a Florida judge named Ms. Novack as the personal representative of Novack's estate before reversing the decision three days later. He ordered her to post a high bond before becoming personal representative, but Novack's wife never posted the bond.

The article does not mention whether Ms. Novack was convicted with the murder of her husband, however, in Ontario the Forfeiture Rule is well founded law for beneficiaries who perpetrate a criminal act against the testator.  The Forfeiture Rule was quoted in Re Benson Estate,  "A sane person who commits murder is debarred by public policy from taking any benefit under the Will or intestacy of his victim."

Thank you for reading,

Rick Bickhram - Click here for more information on Rick Bickhram.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Social Media is not a fad and is fundamentally changing the ways we interact and communicate with others.  Two of the more popular social networking websites, Twitter and Facebook, recently implemented policies that set out guidelines regarding a user’s account once they have died.

Under Twitter’s policy, a person can either request that the deceased user’s account be removed entirely or receive an archive of all the deceased user’s tweets offline once they have provided Twitter with the following information:

1.                  Your full name, contact information (including e-mail address), and your relationship to the deceased user; 

 2.                  The username of the Twitter account, or a link to the profile page of the Twitter account.  

 3.                  A link to a public obituary or news article.

By comparison, Facebook provides two options: either removing the deceased’s account, or "memorializing" it.

Memorializing a person’s account “means the account lives on in Facebook's system, and other Facebook members can interact with the deceased member's wall. What’s interesting about what Facebook put into place, compared to Twitter, is that there’s still a great deal of emphasis put on privacy and what can be done with the information that user has posted to the service. For instance, only that user's friends can still visit the profile or find it in Facebook's public search tool. And Facebook goes so far as to remove all status updates and contact information.”

It is hard to imagine that Facebook and Twitter will remain an important part of our lives many years from now, but Facebook has grown from 300 million to 500 million users in less than a year, with few signs of that slowing down. This is an indication that “policies about a user's death can end up being just as important as those you agree to when you first sign up.”

Thank you for reading, and have a great day.
 

Rick Bickhram - Click here for more information on Rick Bickhram.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Bridging the gap between principle and common sense can be tough for parties involved in litigation.  

World renowned pop artist, Michael Jackson, died over one year ago on June 25, 2009.  As with most estate disputes, they tend to be costly both emotionally and financially, and this tends to be the focus of everyone watching, despite all the good deeds that one may have accomplished during his or her lifetime.

Over the past year, we have heard of issues surrounding the Guardianship of Michael's children, his mother Katherine Jackson's fight to be appointed as the executor for Michael's estate, and illegitimate children coming out of the woodwork claiming to be dependants of Michael.

Most recently, in an entertainment column published by TVNZ, Michael's father, Joe Jackson, has decided to appeal a court decision indicating that he had no right to object to the executors of his son's will.  

Joe Jackson initially accused the executors of Michael's estate, John Branca and John McClain, of fraud and embezzlement.  As Joe Jackson was not a beneficiary of Michael's estate, the court held that he was unable to object to the executors of his son's will.

Joe Jackson's lawyers now argue that Joe was financially dependent on Michael and should therefore have a right to object to the appointment of the executors who control the financial decisions of Michael's estate.  These claims of dependency are being refuted by the lawyer for Michael's children.

As I indicated above, bridging the gap between principle and common sense can be tough for parties involved in litigation.  Is this the legacy that Michael Jackson would have wanted to leave when he died?

Thank you for reading,

Rick Bickhram - Click here for more information on Rick Bickhram.

 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Computers have become a staple in the lives of human beings, such that it is difficult to imagine that there was a point in time when they did not exist. In an effort to remain current with technology, some funeral homes have incorporated the use of technology in how loved ones say their final farewells.

The Toronto Star  recently featured an article about a funeral home that allows distant loved ones to say goodbye by watching the funeral service being streamed over the internet. It sounds eerie, and certainly, there will always be concerns about internet security, but for Brantford trooper Larry Zuidema Rudd, who died when a roadside bomb exploded, having an online funeral service allowed more then 40 of his colleagues in Afghanistan to pay their final respects from their distant base.

The so-called “sympathy casts,” have been growing in popularity. Helen Zuidema, the mother of our fallen solider Zuidema Rudd, says that the sympathy casts have “brought our family together without them having to come here … they’re still talking about it months later.” Zuidema still scans the funeral site, along with its many photos, tributes and messages, about once a week.  “It brings back a lot of memories that you kind of forget when you are grieving,” says Zuidema.

For funeral homes, embracing the advances of technology has created an appreciation amongst loved ones, faraway friends and relatives, who can now be included in saying their final farewell.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

It's Friday, June 25, 2010 and as a result of the G20 summit, I am blogging remotely - from the comfort of my own home. As you know, the leaders from the G20 countries are meeting in Toronto this year to discuss key issues in the global economy.

The road leading to the summit has been a rocky one. I believe the words "fake lake" pretty much sums it up.

And you should be aware that there are traffic restrictions in effect today. For a list of the major highways with partial and full closures today through to Sunday, click here.

Even the judiciary has been impacted! If you are practicing in the area of estates, you are well aware that there were no judges sitting yesterday and there are none sitting today. My colleagues, Natalia Angelini and Paul Trudelle, noted that this was a topic of discussion at the recent Dinner with the Honourable Estates List Judges. 

Well, it's not just the courts that are closed today. In the Globe and Mail's 'local view' blog, which is dedicated to keeping us up to date on the "disruptions" and "drama" that Toronto has experienced in the lead up to the G20 summit, Siri Agrell informs us things have become personal. What could be so personal for Torontonians? Apparently the LCBO announced that it would close 7 of their stores.

If you’ve noticed that your local LCBO store is closed today and you need to stalk up for that party you're holding tomorrow evening (perhaps to celebrate recovery and new beginnings – this year’s G20 theme), click here.

Enjoy your weekend!

Kathryn Pilkington - Click here for more information on Kathryn Pilkington.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As an avid sports fan, I enjoy watching the physical nature of most sports. Recently, our media has reported on the severity of head injuries, which are caused by “head shots”, and the need to implement rules in professional sports to prevent catastrophic head injuries from happening.

Alan Schwarz, an author for the New York Times, recently wrote an article about a loophole in the California workers compensation system that allows retired professional athletes to file a claim for injuries sustained decades before, particularly retired N.F.L. players.  

Schwarz states, “Most states require workers’ compensation claims to be filed within one to five years of the injury; California’s statute of limitations does not begin until the employer formally advises the injured worker of his or her right to workers’ compensation.” Also, California’s workers compensation statutes “require a professional athlete to have played only one game of his or her career within state borders to file a full claim for cumulative injuries.” The logical policy reason behind this legislation is to protect outside workers who temporarily pass through the state, like truckers or flight attendants.

As you can imagine, this loophole has opened the flood gates for retired athletes to file their workers compensation claim. In fact Schwarz states that “about 700 former N.F.L. players are pursuing cases in California, according to state records, with most of them in line to receive routine lump-sum settlements of about $100,000 to $200,000.”

What makes Schwarz’s article interesting is the claim filed by Ralph Wenzel. Wenzel has filed a claim arguing that his dementia at 67 years of age is related to his career as an N.F.L. lineman between the years of 1966 to 1973. The theory of Wenzel’s case is that “hitting your head over and over on the football field causes certain conditions.” In fact, researchers at “at the University of North Carolina have recently linked pro football careers and concussions with heightened rates of depression, mental decline and Alzheimer’s disease.” 

As we continue to see a rise in those who are diagnosed with dementia and Alzheimer’s, I think it will be interesting to see how the sporting industry reacts to this disease, particularly, the rules each professional league implements to eliminate “head shots.”

Thank you for reading.

Rick Bickhram-Click here for more information on Rick Bickhram

• Email This
• Print
• Comments
• Trackbacks
• Share Link

We repeatedly hear about the grim details behind Alzheimer’s disease. In a previous blog titled “The Grim Toll of Alzheimer's”, I touched on a reported study called The Rising Tide: The Impact of Dementia in Canadian Society.   This study has cited that as our population continues to age, the number of people suffering from Alzheimer’s disease is expected to double to 1.25 million within 30 years. Again, another grim statistic.

Today, I blog on another Alzheimer’s study, which fortunately does not have such grim details. In a recent article, Lesley Ciarula Taylor states that specialists in Rochester, Minnesota have discovered “a cheap and easy memory test can predict who will develop Alzheimer’s disease with almost perfect accuracy.” The Free and Cued Selective Reminding Test is used to distinguish normal aging memory loss from a degenerative brain disease. 

Taylor states, “the cost is very low, much lower than an MRI. The hope is to be able to identify the disease as quickly as possible.”

There is no cure for Alzheimer’s. Diagnosing the likelihood of being vulnerable may not necessarily lead to a cure, but at least specialists in this area can now ask new questions that potentially could lead to different angles on handling this disease.

Thank you for reading,

Rick Bickhram-Click here for more information on Rick Bickhram

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As I have been practising in the area of estate litigation for a few years, I occasionally think that I have seen it all; that every recurring story I hear about a family war tends to lose its originality. Not true. Take for instance a recent story that was posted online in the Telegraph, involving a U.S. estate fight.

Tasha Tudor was from New England and has been described as the “unconventional Martha Stewart.” Ms. Tudor died at the age of 92 following complications from a stroke.  The basis of Ms. Tudor’s estate dispute centers on her decision to leave almost her entire estate to her eldest son, virtually cutting out her three other children. 

The oldest son argues that his late mother intended to cut out his three siblings from her estate because they were estranged from her. One of the siblings, a U.S. Air Force lawyer, who claims he was not estranged from his late mother, has asserted that the 2001 Will is invalid on the basis that his older brother unduly influenced his late mother.

The dispute has gotten so acrimonious between the siblings that they could not even agree what to do with their mother's ashes. On motion to the Court, it was ordered that Ms. Tudor’s ashes be divided in half, with one-half to be given to the oldest son and the other half to his siblings. Lawyers are now fighting over who is responsible for a snow plough bill!

It is reported that some of the last words by Ms. Tudor were “Oh, will there ever be a cat and dogfight when I die. But I don't care. I won't be here to see it.” 

It is often difficult to comprehend the harsh realities of litigation until you step into the shoes of one of the parties. I wonder if Ms. Tudor were alive to witness the severity of this dispute whether she would take back those words?

Thank you for reading

Rick Bickhram

Rick Bickhram - Click here for more information on Rick Bickhram.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As most of us return to our offices from a long weekend, I would like to share with you an interesting case, which I read over the weekend and deals with an Application to declare a family member unworthy to inherit. S.R. (Succession de), 2008 QCCS 4015, is a decision released by the Quebec Superior Court.

In, S.R. (Succession de), the Deceased was survived by his spouse and four children.    The Deceased was a savvy businessman who, during his lifetime, was quite successful. In 1995, the Deceased asked a notary to prepare a Will. A draft Will was sent to the Deceased for his review but it appears that he never executed the Will. In 2000, the Deceased was diagnosed with cancer and subsequently died in 2003.

After the Deceased died, the children looked for their father’s Will in the home and at the Deceased’s office with no success. We are given to understand that all of the children, searched, under the bed, every closet, every brief case belonging to the Deceased, but were unable to recover a Will.   

One of the daughters prepared a proposal requesting the siblings to acknowledge that the Deceased promised to transfer a certain property to her. This would have the effect of increasing her entitlement under the Deceased’s estate. Her siblings refused to sign the acknowledgement, which led to the ensuing dispute. The disgruntled daughter, subsequently informed everyone that she had in fact, located a Will of the Deceased in an old briefcase, which was allegedly in the bedroom closet of the Deceased’s residence.

The discovered Will was similar to the draft Will prepared earlier, except that it included two additional provisions which favoured the disgruntled daughter, in the amount of $2.4 million dollars and was apparently executed by two witnesses from New York. 

The disgruntled daughter tried to probate this Will, but it was contested by her siblings and it was ultimately ruled that the Will could not be probated by the Honourable Justice Gagnon. Justice Gagnon held that there were all the sorts of question marks surrounding the validity and execution of the Will. 

After the Application for probate was refused, the disgruntled daughter then produced a document which was a blank cheque allegedly signed by the Deceased and which purported to give the disgruntled daughter her share in a building that she coveted and various other monies for her home. The siblings refused to admit the authenticity of the blank cheque and commenced proceedings against the disgruntled daughter to have her declared unworthy to inherit under the Deceased’s estate. 

Under the section 621 of the Civil Code of Quebec, it states that a person “may be declared unworthy of inheriting where a person is guilty of cruelty towards the deceased, and where the person has concealed, altered or destroyed in bad faith the Will of the deceased, or a person who has hindered the testator in the writing, amending or revoking of their Will.” 

In relying on this provision, the children advocated that the disgruntled should be precluded from inheriting because she concealed and altered, in bad faith the alleged Will of the Deceased. 

The court held that the disgruntled daughter had likely altered the Deceased’s Will, had taken the draft prepared by the notary and added some typewritten additions that benefited her to the detriment of her siblings and mother. The court further held that the disgruntled daughter likely had taken the blank cheque from the Deceased’s home and also forged that after his death.

Accordingly, the disgruntled daughter was declared unworthy to inherit and her claims against the estate were dismissed.

An interesting point, in Ontario we do not have any similar case law or legislation that would actually allow someone to commence a proceeding, seeking to have someone else precluded from receiving their entitlement absent criminal activity such as murder.

Have a great day,

Rick Bickhram

Rick Bickhram - Click here for more information on Rick Bickhram.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I think it’s fair to say that the Internet has severely disrupted the traditional value chains in regards to how we obtain our media content. The value of content, starting with music, movies, TV shows, news and most recently books are being redefined for the Internet age.

I recently read an article published by the BBC News Magazine entitled “Page-turning Passion”, which details the culture of book reading and particularly how we have obtained and received the content from books. 

In the 1640s, books were more than just a tool to obtain information. It was a “treasured personal possession, and object whose loss would be keenly felt. To their privileged owners they were coveted objects, symbols of conspicuous consumption to be displayed alongside paintings, sculpture and silverware”.

Over time, manuscripts were replaced with printed books. Noticeably, printed books lacked that unique quality that gave each manuscript its touch of art. After all, printed books were simply copies produced on the production line. I am a product of the printed book era and have thoroughly enjoyed reading. I reject the idea that some have asserted indicating that printed books are impersonal volumes. As a reader, we find creative ways to make them ours, by underlining and highlighting in these books. I can dog ear pages if I want to.  I can rip out pages.  I can draw pictures in them. 

Now we have entered into a new era, the e-book era. If you have not yet heard of the Kindle, it is Amazon’s wireless reading device. The Kindle also has applications for most smart phones, which makes downloading and reading even more convenient and, unlike the 1640s, the Kindle is simply a tool to obtain information. 

Rush, scuttle and hurry seems to be the ear marks of today’s society. As an urban commuter, rarely do we have the time or the space to pull a book out while crammed onto a subway. Now it is as simple as purchasing a book while on my way to the subway and doing all of the reading off of the smart phone while I am on the subway.

There will always be advocates against the growth and importance of technology, but as an urban resident and a commuter, if it weren't for phone reading, I wouldn't be reading at all.

Thank you for reading,

Rick Bickhram

Rick Bickhram - Click here for more information on Rick Bickhram.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Toronto Star recently reported on Alzheimer’s disease, stating that “cases of the mind-robbing disease will more than double to 1.25 million within 30 years as baby boomers age”. 

With the numbers pointing upward as the population grays, a recent report by the Alzheimer Society, entitled Rising Tide: The Impact of Dementia on Canadian Society suggests the following steps to help reduce the impact of dementia:

1.                  Prevention programs based on healthy diet and physical activity that can delay the onset of dementia by two years, with a potential cost saving of $219 billion over the 30-year period.

2.                  Enhanced skill-building and support programs for family caregivers, many of whom suffer financial hardship because they must leave jobs to look after a relative with dementia.

3.                  Assigning a case manager to each newly diagnosed dementia patient and their caregivers, which could help the person remain at home longer and lessen the strain on the long-term-care system.

Today, annual funding for Alzheimer’s is approximately $24 million. The Toronto Star reports that if “nothing changes, this sharp increase in the number of people living with dementia will mean that by 2038, the total costs associated with dementia will reach $153 billion a year”. 

We have already seen a substantial influx with respect to Will challenges, particularly because there has been a big question mark about the testator’s capacity. The grim realty is that this will be a continuing problem that Estate Solicitors are going to have to tackle.

Thank you for reading.

Rick Bickhram

Rick Bickhram - Click here for more information on Rick Bickhram.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As we are in the beginning of a new year, a quote from one of my favourite poets, T.S. Eliot, comes to mind:  “For last year's words belong to last year's language and next year's words await another voice.”  

I recently came across an article entitled "The 8 Life Stages of Estate Planning", authored by G.M. Filisko.  In his article, Mr. Filisko points out the obvious - during our life we will go through different phases and our estate plans should reflect these changes. Mr. Filisko lists the following stages to consider regardless of the phase one may be currently in:

1.      Young, single and carefree
2.      Single, but committed
3.      We’re Engaged
4.      Just Married
5.      The Joys of Parenting
6.      Divorce (if unfortunately applicable)
7.      The Middle Ages
8.      The Golden Years

Regardless of where one may fall in this spectrum, it is never to late to get started.

Since making New Year’s resolutions seems to be the theme around this time of the year, let’s make a resolution to be more organized this year and spend some time considering our estate plans.

Thank you for reading.

Rick Bickhram

Rick Bickhram - Click here for more information on Rick Bickhram.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

This is our last blog of 2009!

Thank you for reading our blog posts over the past year. We have enjoyed preparing them. We hope that we have been informative.

With the close of 2009, we turn and look to the promises of 2010. While there is no doubt many things are to be considered for the new years, from a family perspective, perhaps this is the year to resolve to consider, or reconsider, whether your family’s legal affairs have been properly planned.

On behalf of everyone at Hull & Hull LLP, I would like to wish you a wonderful new year. We hope that you have a safe, restful holiday. 

Happy New Year.

Rick Bickhram

Rick Bickhram - Click here for more information about Rick Bickhram.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Without understanding what the term “social media” is, it can sound intimidating to those in our industry who are not computer literate. But what is social media? Wikipedia defines social media as “media which are formed mainly by the public as a group, in a social way, rather than media produced by journalists, editors and media conglomerates." In an article, composed by Gary Edgar of LawPro, he defines social media as anyone looking to engage, connect and network with others online.

Gary Edgar does point out that one thing social media is not, is a fad.   Social Media is fundamentally changing the ways we interact and communicate with others and it will be interesting to see how this form of media continues to evolve. 

Social networks can be used to learn, exchange ideas and collaborate on projects. I have participated in numerous forums where I have learned how to troubleshoot many problems that I may have encountered with my automobile and computer, moreover, I have also learned neat little tips on some home renovations.  Social Media can also be used as a form of marketing. As Gary Edgar points out in his article, 15-20 years ago, the options for self promotion were limited to newspaper ads, the yellow pages, a radio or TV. Now with the concept of social media, our options have multiplied and the costs for self promotion have been drastically reduced.

However, the social media world is not the flawless paradise that we all would like it to be. There have been instances of online imposters, questions as to how much of my real life persona should I share online, how many people are seeing the things I post and who owns the information that is placed online?  These are all very important questions that will become clearer as this form of media continues to evolve.

Until next time,

Rick Bickhram

Rick Bickhram - Click here for more information on Rick Bickhram.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As our year winds down and we prepare for the New Year, we have much to look forward to as our judicial system has undergone a minor facelift to reflect the changes in our society.  One such change has been the implementation of new legislation, The Apology Act (the “Act”), which came into effect on April 23, 2009.

The Act would permit the communications of expressions of sorrow or regret without worrying that the comments can later be used adversely in a civil court. Under the Act, an apology is defined as:

An expression of sympathy or regret, a statement that a person is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit fault or liability or imply an admission of fault or liability in connection with the matter to which the words or action relate.

Proponents of the Act, suggest that the new legislation will enhance the dispute resolution process, promote accountability and enhance the affordability and speed of justice by shortening or avoiding litigation. The rationale for the implementation of this Act is similar to the rationale for the changes to the Rules of Civil Procedure, which is to make our system accessible, cost effective and efficient.

I agree with the purpose, the idea behind implementing this act, however I question .. has our society become so litigious that we now require the legislature to protect us from apologizing?

Thank you for reading my blog, until next time, 

Rick Bickhram

Rick Bickhram - Click here for more information on Rick Bickhram.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The 12th Annual Estates & Trusts Summit, took place late last week on November 12th and 13th, 2009 in Toronto.  This program, organized by the Law Society of Upper Canada, presented a variety of issues which are of interest to anyone practicing in the Estates and Trusts field.

The summit spanned two days, and dealt with topics running the gamut.  Some of the Topics and Speakers included:

• Estate Planning in Recessionary Times (Heather Evans)
• U.S./Canada Cross-Border Planning (Beth Webel & Jim Yager)
• Family Law and Your Estates Practice - An Update (Daniel S. Melamed, C.S.)
• Drafting Multiple Wills (Clare A. Sullivan)
• Estate Administration Issues (Rosanne T. Rocchi)
• Creating Insurance Trusts to Minimize Probate Tax on Life Insurance (Robin Goodman)
• The Exercise of Trustee Discretion (Bernadette Dietrich)
• Practice Management Issues for Estates Practitioners (Louise F. Christofolakos)
• Constructive Trusts and Quantum Meruit (Elizabeth A. Bozek)
• The Standard of Care and Will Drafting (Ian M. Hull, C.S)
• Duelling Powers of Attorney (Jordan M. Atin, C.S.)
• The Latest Costs Issues (Shael Eisen)
• Remedies for Non-Compliance with Court Orders (Kimberly Ann Whaley, C.S.)
• The Top 10 Decisions Released by The Honourable Mr. Justice David Brown (Timothy G. Youdan)
• Representing the Incapable Person (Marshall Swadron)

For a full list of speakers and topics visit the Law Society of Upper Canada Website.  If you were not able to attend, contact the Law Society of Upper Canada to obtain materials.

Nadia M. Harasymowycz

Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I conclude my blog week by writing about the late Michael Jackson who was finally laid to rest on September 3, 2009. Ten long weeks after his death, Michael Jackson’s coffin was placed in a mausoleum in the Forest Lawn Memorial Park, which is located outside of Los Angeles.

If reports are to be believed, his body has been placed in the Holly Terrace, which is a large hall at the centre of Forest Lawn's monolithic grounds. Although the fascination of Michael Jackson will continue long after his death, the mausoleum is policed by private guards and is rumoured to be among the highest security resting places in the world.

There have been reports indicating that the price of grave-plots close to Michael Jackson's tomb have gone up $2,000 - $3,000 in value since Michael Jackson joined the neighbourhood.

Some reports have indicated that some private parties have asked for substantially more, with one person rumoured to have asked for $34,000 for a double unit inside of the Michael Jackson mausoleum. Even after death, Michael is still making headlines, this time in the cemetery world.

Thank you for reading and I hope you have an enjoyable weekend!

Rick Bickhram

Rick Bickhram - Click here for more information on Rick Bickhram.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Planning your estate feels a lot like preparing for your taxes. It takes time and it’s something the average person hates to turn their mind to. Nevertheless, a solid estate plan is, without a doubt, the best defence against the potential threats to hard earned wealth posed by disgruntled family members or tax authorities.

Recently, I read an article written by Hyman Darling, an Attorney in the State of Massachusetts, in regards to the top 10 issues regarding wills. Mr. Darling states that the top 10 issues that are frequently being considered by the average person are:

1.                  Should I have a Will?

2.                  What kind of Will should I have?

3.                  How does a Will work when I die?

4.                  What if I have a Will but am not satisfied with it?

5.                  Do both spouses need Wills?

6.                  Is it possible to set up a Trust under my Will?

7.                  How can I include a charity in my Will?

8.                  How can a charitable bequest benefit me?

9.                  How much does a Will cost?

10.              How do I go about getting an attorney?

Mr. Darling does an exceptional job at considering each issue and I certainly recommend that everyone considering an estate plan review his article.

Thank you for reading,

Rick Bickhram

Rick Bickhram - Click here for more information on Rick Bickhram.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

It should come as no surprise that we live in an aging society. As our society continues to grow old, family members should be concerned about their loved ones who live with disabilities.  

I recently read an article (found here) that describes the obstacles that our law enforcement and emergency professionals are confronted with when responding to an emergency involving a disabled or elderly person.

The article describes stories where law enforcement and emergency professionals were not aware or misunderstood the unique limitations of people with disabilities and were unable to offer the best assistance during their need for help. For instance, the article describes “a California man who, while waiting for his bus home from work, was beaten by officers who mistook his folded white cane for a martial arts weapon and a Florida man dumped from his wheelchair by a deputy who didn't believe he was paralyzed.”

The focus of this article should be for family members to be prepared for emergencies. Some helpful tips to becoming prepared are:

1. Instructing family members with disabilities to contact family members right after emergency professionals;

2. Keeping relevant health records in an easily accessible location and instructing family members to give the materials to emergency professionals; and

3. Enlisting your neighbours and nearby friends to offer assistance in emergency situations.

There is no full-proof method of preventing some of the tragedies that the article describes but our family members are the most important people in our lives and we can protect them from traumatic and life-threatening events through careful planning.    

Thank you for reading.

Rick Bickhram

Rick Bickhram - Click here for more information on Rick Bickhram.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A good friend of mine recently reminded me that death is not just about dividing up the spoils (a common theme in estate litigation), but also about remembering the lasting contributions made by a person during their lifetime. I was reminded of this in reading about the recent deaths of two well-known figures, Donald Marshall and Eunice Kennedy Shriver.

Donald Marshall passed away last week in Sydney, Nova Scotia. In 1971, when he was just seventeen years old, Mr. Marshall was wrongfully convicted of a crime he did not commit and jailed for eleven years. He subsequently challenged the legal system and blazed a trail for other wrongfully convicted Canadians to fight to have their convictions overturned. His case led to a Royal Commission in 1990, which produced a slew of recommendations that fundamentally changed the criminal justice system in Nova Scotia. In 1993, Mr. Marshall again reluctantly stepped into the spotlight, when he was arrested and eventually convicted of various fishing violations. Mr. Marshall fought his convictions all the way to the Supreme Court of Canada, winning acquittals and a significant victory for the native treaty rights of his people, the Mi’kmaq Nation. 

This week, Eunice Kennedy Shriver (President John F. Kennedy's sister) passed away. Eunice Kennedy Shriver was a champion for the rights of the mentally disabled and founded the Special Olympics, which has grown into a truly global event. President Obama noted in a statement that Mrs. Shriver will be remembered as "as a champion for people with intellectual disabilities, and as an extraordinary woman who, as much as anyone, taught our nation — and our world — that no physical or mental barrier can restrain the power of the human spirit".

Thanks for reading,

Bianca La Neve

Bianca La Neve - Click here for more information on Bianca La Neve.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In a recent news item out of Queensland, Australia, a 77-year-old man has failed in his attempt to regain control of his financial affairs. The elderly gentleman had apparently squandered part of his money on hundreds of calls to sex-chat lines. The Guardianship and Administration Tribunal of Queensland had made an order last year giving control of the elderly gentleman’s financial affairs to the Public Trustee. In November 2008, the Tribunal upheld its original order, leading the elderly gentleman to appeal the matter to the Supreme Court. Last week, the Supreme Court denied the appeal and agreed that the Tribunal retain control over the man’s financial affairs. 

Details of the hearing cannot be released due to a publication ban. One wonders whether the sex-chat calls were isolated incidents or part of a pattern of unusual behaviour that convinced the Tribunal (and the Supreme Court) that the elderly gentleman’s capacity to manage his own finances was impaired. It is also unclear whether the man had family and/or whether any of his family supported his fight to regain control of his money. 

I note that the Guardianship and Administration Tribunal of Queensland has similar duties and responsibilities to Ontario’s Office of the Public Guardian and Trustee of Ontario (OPGT) and the Consent and Capacity Board. The Tribunal of Queensland can determine whether or not a person has impaired decision-making capacity and, if necessary, make an order appointing a guardian and/or an administrator. In Ontario, it is the courts that primarily make determinations of incapacity. 

Thanks for reading,

Bianca La Neve

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Death planning now includes options like buying your coffin at your favourite retailer, purchasing jewellery keepsakes that hold a loved one's ashes, and even treating mourners at your funeral to ice cream.

For my final blog of the week, I thought that it would be appropriate to discuss Death Planning. In my limited experience, I recognize an ingredient of success is the ability to adapt to change.   Changing ideas about traditional funeral and burial practices are bringing change to this industry. A recent article in the New York Times by Gabrielle Glasser discusses personalizing your funeral service. 

Despite being in financially weary times, Glasser notes that your funeral is your last chance to be a big spender. Peter Moloney and his six brothers own six funeral homes on Long Island and have catered to customers who wish to have a customized send-off. For instance: “Bike lovers pay an extra $200 or so to take their last ride in a special hearse towed by a Harley-Davidson motorcycle. Gardeners select wildflower seed packets to include with their funeral programs. One gentleman wanted to be remembered for comforting his grandchildren with ice cream, so, after the funeral, mourners were greeted by a man in a Good Humor truck, handing out frozen treats.”

I have yet to hear of a funeral home that caters to customized send-offs north of the border, but I presume that we may be a little bit more reluctant to abandon our traditional religious funerals in favour of secular ceremonies.

Before I sign-off, I would like to point out that tonight is the final game of the Stanley Cup Playoffs. Two of the greats will be playing tonight for Pittsburgh, Sid the Kid and Evgeni Malkin. If you tune in tonight, I am sure that you will get the opportunity to see them outskate the older, and slower Detroit Red Wings. Looking on with anticipation…

Go Pittsburgh!

Rick Bickhram

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Being immersed in the world of law, we're constantly confronted with upsetting and often depressing stories.  It feels good to occasionally resurface to hear about a positive story.  

In the London Evening Standard, David Cohen writes about the new queen of Soho, a 23 year old, named Fawn James.  For those of you who are not familiar with the area, Soho is located in the centre of the West End of London, England, in the City of Westminster.  

Fawn James inherited £75 million from her grandfather Paul Raymond, who was well known as Soho's property tycoon.  Paul died approximately one year ago.

In his article, Fawn James is described in a manner that we can all relate to at some point in our life, a student living on a budget.  One year later, Fawn is £75 million richer and both her and her family now controls 60 of Soho's 87 acres.

In her first interview since inheriting her grandfather's treasure chest Fawn says that her "first mission will be to make Soho greener.  We're looking at retrofitting our entire stock of buildings to make them more environmentally friendly".   She's also committed to her community, "I think it's important to support charities operating Soho and in the coming months I'll be assessing which one we want to assist."  As she reflects back on her time with her grandfather her only concern now is "to make him proud".  

Thank you for reading,


Rick Bickhram

 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Ontario Lawyers Gazette recently published a helpful article titled “Succession Planning Protects You and Your Clients”, which reminds licensees of the importance of planning for the future.

According to a 2006 survey, 80% of sole practitioners do not have a plan detailing who would service their clients in the event of their death or incapacity. This is an alarming number of sole practitioners who are putting themselves at unnecessary risk.

Under the provisions of the Law Society Act, the Trustee Services department of the Law Society may intervene in a practitioner’s practice and obtain a variety of orders which would have the effect of winding up the practitioner’s practice in the event that the practitioner became incapacitated or deceased. Margaret Cowtan, manager of Trustee Services states that “it can be a very intrusive and often expensive undertaking if Trustee Services is required to resort to an order to enable a practice to be wound up.” 

One alternative that we can consider in planning for our future is to “name a licensed lawyer as a limited trustee in their wills for the sole purpose of winding up the practice. By appointing another lawyer as a trustee for the purposes of the practice, on death, that lawyer can not only take professional responsibility for the trust account and make appropriate distributions to clients he or she can review client files, continue matters should clients elect to engage them, or return files to clients as appropriate.” We can also give signing authority on the trust account to another lawyer in the event of an emergency. Only licensed lawyers or paralegals are permitted to deal with trust accounts.

If you are interested in learning more about planning for your future, please click the following link which will take you to the Law Society’s Succession Planning Toolkit.

Thank you for reading,


Rick Bickhram

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In keeping with modern advances in our society, The Honourable Coulter Osborne (former Associate Chief Justice of Ontario), was asked to propose some options that would assist in making our civil justice system more accessible and affordable.  The Honourable Coulter Osborne submitted his findings and recommendations and in December 2008 The Civil Rules Committee filed amendments, which are scheduled to come into effect on January 1, 2010 (amendments can be found here).  It is important to note that there is no transitional stage with respect to the amendments coming into force. 

The following are a few amendments that caught my eye:

1.    Rule 1.04 (1.1) provides that the court shall make orders and give directions that are proportionate to the importance and complexity of issues, and the amount involved, in the proceeding.  

2.    Rule 1.08 will permit the court, on its own initiative, to hear matters by telephone or video conference.  

3.    Pursuant to Rule 20 (summary judgment), the general test to obtain judgment is the moving parties ability to show that there is "no genuine issue for trial".  Rule 20 has now been amended which imposes the burden on the moving party to show that there is "no genuine issue requiring a trial".   

4.    In actions commenced in Toronto, Ottawa and Essex County, mandatory mediations are to take place within 180 days, rather than from 90 days of filing the first defence unless the court orders otherwise.  

5.    Where the discovery tools are likely to be implemented in a litigious matter, Rule 29.1 now requires the parties to agree to a discovery plan before the earlier of 60 days after the close of pleadings or such longer period as agreed.  The discovery plan must be in writing and it must include the intended scope of documentary discovery, taking into account relevance, costs and the importance and complexity of the issues.

6.    With respect to examinations for discovery, regardless of the number of parties or other persons to be examined, no party is allowed to examine for more than seven hours unless the party has obtained the consent of the parties or has obtained a court order.

7.    The monetary jurisdiction of the Small Claims Court will be increased to $25,000.00.

Again, these amendments were made with a view that it would make our civil justice system more accessible and affordable.  For instance, permitting courts to hear matters via telephone or video conference will free up judicial resources, and reduce Lawyers fees.   Increasing the monetary jurisdiction of Small Claims Court to $25,000.00 will provide access to justice for many in need and at the same time eliminate the demanding obligations that are imposed upon parties under the Rules of Civil Procedure.   I will be looking on with interest as these amendments take effect in the new year.

Thank you for reading and have a great day.  

Rick



 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

This year’s trusts and estates section of the Institute was held on Tuesday, February 3, 2009. The programme featured a broad and interesting selection of topics by experienced practitioners.

Topics included:

• Estate planning for ‘complex’ families
• Environmental liability issues for trustees, executors, attorneys and guardians
• Family law surprises
• Conflict of laws in cases of multi-jurisdictional families and their assets
• Developments in costs in estates and capacity litigation
• Trustee mistakes
• Rights of adult beneficiaries to receive support
• Capacity assessments
• Power of attorney pitfalls

The programme was informative and insightful and a great opportunity to meet and speak with leading estate practitioners. If you were unable to attend, the seminar materials are available from the Ontario Bar Association.

Have a great day!

Bianca La Neve

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Listen to Estate Planning in Uncertain Economic Times

This week on Hull on Estates David Smith and Sarah Hyndman Fitzpatrick talk about estate planning in uncertain economic times. They discuss how the current economic situation has impacted estate planning and litigation and new tools (such as the "Tax Free Savings Account") to consider in creating you estate plan.

Feel free to send us an email at hull.lawyers@gmail.com or leave us a comment on the Hull on Estates blog.

Estate Planning in Uncertain Economic Times - Episode #148

Posted on February 5^th, 2009 by Hull & Hull LLP

David Smith: Hi and welcome to Hull on Estates. You’re listening to episode #148 on Tuesday, February 3^rd, 2009.

Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada.   Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and wills. Now, here are today’s hosts.

David Smith:  Hi, I’m David Smith and welcome to another episode of Hull on Estates.

Sarah Fitzpatrick:   And I’m Sarah Fitzpatrick. If you want to be heard on Hull on Estates, you can participate by leaving us a comment, you can e-mail us at hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com.

David Smith:  Good afternoon Sarah.

Sarah Fitzpatrick:   How are you today?

David Smith:  I’m good Sarah. And you know, it’s great to have this opportunity to podcast. And we were talking about what we could podcast about and regrettably top of mind for everybody is the economy.

Sarah Fitzpatrick:  Absolutely.

David Smith:  And so we thought maybe it would be a good time to revisit estate planning in general, especially in this kind of climate.

Sarah Fitzpatrick:   Absolutely. Certainly these fragile economic times lead everyone to think about their estate plans, perhaps what they’ve done right, what they could reconsider and it’s a good time just to make sure that your house is in order and your estate planning is up-to-date and current.

David Smith:  Right and I guess, you know, top of mind is keeping fees to a minimum and trying to save tax expense. And so, you know, that always makes us think about general probate avoidance techniques such as beneficiary designations and joint account holdings. But of course, we’ve got this new tax-free savings account as well.

Sarah Fitzpatrick: Right, these new tax-free savings accounts, also dubbed the TFSAs are really a new tool in our estate planning tool kit.

David Smith:  Yeah, could you tell me a little bit about them, Sarah, because I’d read a bit about them in the media but I don’t really have a handle on them.

Sarah Fitzpatrick:  Right, well it was introduced by the federal government in early January and basically it’s a mechanism whereby individuals can contribute a certain amount into savings accounts and they can…the income that is generated on that is not subject to tax. And unlike an RRSP, you can actually withdraw those amounts as well and the income when you withdraw it is not subject to tax as well.

David Smith:  So a little more flexible then.

Sarah Fitzpatrick:   It’s absolutely more flexible. It certainly doesn’t replace the estate planning tool of an RRSP but I would say it’s a helpful adjunct to the RRSP.

David Smith:  Okay, I think the number I see bandied about is $5,000, is that right?

Sarah Fitzpatrick:  Its $5,000 right now which many are considering one of the detriments to the scheme because it’s sort of a low contribution limit. I’ve heard that that’s supposed to be raised by $500 a year as well. So its $5,000 for the year.

David Smith:  Right, and I mean, I guess my initial impression when I heard about these were, you know, gosh the income you’re going to earn on that much money invested is not a heck of a lot of money so you know, I’m not sure that I’m sold on this being a huge tax savings. But I guess it adds up.

Sarah Fitzpatrick:   It does and again, when I said before that it can be used in conjunction with an RRSP, one advantage to it, unlike the RRSP, is actually there is no time limit where you need to wind it up or convert it into another investment vehicle. There’s actually no time limit at all…

David Smith:  You’re referring to the age of 69 or 70?

Sarah Fitzpatrick:  That’s correct, and rolling it over into your RIF as opposed to your RRSP. That time limit doesn’t apply in this case. So that can be very helpful. And obviously if you’re looking at long-term savings, $5,000 a year, with the increase of $500 every year, that can amount to some very considerable savings on your income.

David Smith: And that would be particularly useful for seniors, I guess, who are approaching the age when they would otherwise have to convert the RRSP.

Sarah Fitzpatrick:  Absolutely. Yeah. So once again, just yet another estate planning tool to consider. We still don’t seem to have an answer on whether or not the proceeds would fall inside or outside of your estate and be subject to probate tax. I note that you were discussing you know obviously one of the objectives when we are estate planning, is to make sure you have as much out of the pot, so to speak, as you can, to avoid those probate fees. So I think it’s yet to be seen whether or not the proceeds from the TFSAs are actually exempt from probate taxes but you can in fact designate a beneficiary on the plan.

David Smith:  Right, I know that one of our associates, Diane Vieira…

Sarah Fitzpatrick:   She recently blogged on this.

David Smith:  Recently blogged on this, right. So I guess for our listeners, if you go onto the website and type in “TFSA” in the search box, you’ll be able to find Diane’s blog. It was about 3 weeks ago and it touches on this very issue.

Sarah Fitzpatrick:   That’s right.

David Smith:  So I guess that kind of covers TFSAs. I mean, something to think about and as always, estate plans are impacted by any new investment tool that the government comes up with. Is there anything else we should think about, Sarah, in view of the economy in terms of advising our listeners what to give some consideration to?

Sarah Fitzpatrick:  Well I think you know we have really scenarios where you’ve got your individual who’s got a very basic estate plan and you would think that in this type of economy, individuals might be less inclined to come and make sure your estate plan is in order and get your Wills up to date, basically due to the cost. I’m finding that there’s actually been a surge in sort of the very basic individual who’s got the basic estate plan, coming in to make sure that they have sort of all their ducks in line and it’s been very busy with people, I think wanting just not to leave anything to chance. They’ve perhaps been exposed to risks over the last few months and looking just to shore everything up and make sure everything is in order. And then you have the situation where you might have somebody with a more complex estate plan and in those situations as well, again it’s a good time just to make sure that all your documents are in order. You may have assets that may be depleted, they may no longer even exist. You may have sold property that you’ve referred to in a Will. There may be income splitting trust arrangements that may be beneficial to consider. You may have drafted a trust based on perhaps capital gains issues and that issue may have changed now with the economy, given lower property values and so forth. So there’s all kinds of issues.

David Smith:  Lots of things to consider, for sure, and certainly you know our listeners may not know this but you’re more of a planning-bent; I’m more of a litigation-bent and in my practice, one thing that comes to mind for sure is the prudent investment of estate assets because of course with the downturn, you know, everybody - no matter how conservatively invested - is going to be losing something. And so consideration has to be given to reviewing your portfolios and that presumably is going to be a consideration top of mind for estate trustees who have that fiduciary duty to trustees. But also to people planning their estates and giving consideration to how to save taxes appropriately and all of these factors, you know, losses, what have you, can be factored into the estate plan.

Sarah Fitzpatrick:   That’s right.

David Smith:  Alright, so you know, useful to consider all of this. Something else that we…the general approach that we often consider when we’re talking about estate planning is this whole idea of probate avoidance techniques, I guess, I use it as a sort of general term because I run into it quite often in my practice. What are you seeing as trends in that in terms of the planning side?

Sarah Fitzpatrick:   I’d say obviously you’ve got your obvious ones, you’ve got your life insurance, making sure that you’ve got your life insurance in place because that obviously falls outside the scope of your estate and is not subject to probate tax. We’ve got your RRSPs as well. Those are really the critical ones. And I think people with a very basic estate plan are most likely to employ.

David Smith:  Right and I guess the joint account issue is always top of mind for me in litigation because I so often see what goes wrong if it’s not properly papered. And so of course if the intention is to gift that asset by right of survivorship and if it’s a scenario where but for some evidence that that’s the intention, the presumption of resulting trust would apply, its probably a good idea to document some kind of arrangement or agreement between the recipients as to how that asset is going to be treated.

Sarah Fitzpatrick:  That’s right. And as many of you are probably aware, we have had, you know, in the last year I guess it’s almost two years ago now, we’ve had the Supreme Court of Canada decisions in this regard. So absolutely making sure…I think the bottom line is making sure that your intentions are very clear whether or not it’s a resulting trust or not. But just making sure that everything is documented.

David Smith:  Right. Do you think, I see we’re getting near the end of our podcast here but in terms of wrapping it up, Sarah, is there anything we haven’t touched on that listeners can give some thought to, just having consideration to the market conditions and the general economic downturn, in terms of prudent estate planning, that comes to mind that we haven’t touched on?

Sarah Fitzpatrick:  Yeah, I think the bottom line David is just that this is, you know, a very uncertain economic time and people just want to make sure that everything is in order. That your documents that you have are the proper documents, they’re complete and that you’ve really covered off all your bases, and that your estate planning prudently.

David Smith: Right and on that whole idea of being prudent, I guess some thought has to be given to fundamentally the most important aspect of a good estate plan is that it reduces the likelihood of litigation which obviously, its in the minority, but those estates that are subject to litigation have to suffer you know the considerable added expense of legal fees that everyone ought to avoid. And so when clients meet with you to talk about an estate plan, the whole idea is to create a situation where the likelihood of litigation is reduced because of prudent estate planning.

Sarah Fitzpatrick:   That’s correct and I don’t know whether we’ve seen this trickle down effect yet but perhaps it remains to be seen whether, in light of the economy over the past year, we’ve got more litigation.

David Smith:  Yeah, its going to be an interesting question, isn’t it? Because the lawyers who act in litigation files are going to be less inclined presumably to ask for significant retainers, knowing that their clients may not be in a position to fund them. On the other hand, I think you may well see a drive towards people looking to estates as possible sources of relief from a situation where they are suffering from not having significant assets. Not to say that that will sort of feed into a huge cottage industry of frivolous litigation but people who might not otherwise give consideration to litigation may now be forced to consider whether they want to join in on a claim or what have you.

Sarah Fitzpatrick:  That’s right.
 

David Smith:  Simply because the market forces are such that they may feel that this is a necessity. So it could well drive the demands. I think it may also drive a lot of the cases to settle earlier too, because people just won’t have the belly or the wherewithal to stick it out to go to a trial.

Sarah Fitzpatrick:  Right.

David Smith:  So from the litigation side, it will be interesting as well to see how this happens. I mean obviously our best wish for everybody is that the economy you know experiences an upturn because nobody wants to be seen to be benefiting from a downturn. I think the bigger concern for everybody out there is just that we’re through this period sooner rather than later.

Sarah Fitzpatrick:  Absolutely.

David Smith:  So it was really helpful, I think Sarah, sort of revisiting the estate planning side of this and touching briefly on the litigation.

Sarah Fitzpatrick:   Great, it was great podcasting with you David.

David Smith:  Well, I’m just, you know, have this big decision now whether to contribute to a TFSA or an RRSP.

Sarah Fitzpatrick:   I think the answer is both.

David Smith:  Yeah, I just need the money.

Sarah Fitzpatrick:   Great.

David Smith:  Okay thank you.

Sarah Fitzpatrick:   Thanks David.

This has been Hull on Estates with the lawyers of Hull & Hull. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

Our theme music is Upper Structure by DJ AKid  and is courtesy of the Podsafe Music Network.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The business pages, especially in this uncertain economy, can be interesting.  Recently I gravitate toward Paul Waldie's column in the Globe & Mail.  Frequently, he identifies the gifts, causes and reasons provided by individuals whose donations range from under $100,000 to a million dollars or more. It's a spot of good news in this economic downturn.

We have covered legacies from several angles at Hull & Hull; there are 25 hits when "legacy" is searched on the Blogs and Podcasts section of our website.  The law dictionary defines legacy as "A gift by will, esp. of personal property and often of money;  a bequest."

Individuals can leave a legacy in their respective Wills, but as the Globe & Mail column highlights, people who have the means enjoy the satisfaction of leaving a legacy during their lifetime. Stories abound, as www.leavealegacy.ca illustrates.  There are as many reasons to leave a legacy as there are donors.

The principle of leaving a successful legacy applies to many realms, including the family business.  In some instances, it is advisable to not leave the kids the family business.  Rick Spence, of Moneysense, suggests passing on values, rather than gifting the family business.  Certainly we are not all in the position of "firing the kids", but there may be many good reasons to do now what you would otherwise do in your Will. 

Jonathan

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As a WWII pay officer in the Canadian military, my paternal grandfather met a British woman on the beach when he was stationed in the south of England. They married soon after the War and retired in England in the mid-1960s.  My grandfather died in the early 1990s; when my step-grandmother, Tessa, died in 2008, in her Will she left her house to my father and aunt.

If there were no Will, Tessa's estate could have contributed to the British government's coffers.  In that circumstance, a probate research firm could have played a role. 

Title Research is one of the firms highlighted in yesterdays blog about "heir hunters".  Its services include: searches for missing beneficiaries, heirs, and legal documents (such as marriage, birth and death certificates back to the 1800s); asset research to value, verify and find missing or unknown assets; missing beneficiary indemnity insurance; probate valuations; and will searches to determine that the Will is the deceased's last will. 

If Tessa had died intestate, Title Research, and other firms, could have located her heirs around the world.  Alternatively, if the estate trustee had questions about the value of the estate assets, or had the trustee not known the whereabouts of the beneficiaries, it could have enlisted a search firm's services as some anecdotes suggest.

Potentially trustees can protect their personal liability by engaging a firm that has a best practices endorsement of Britain's Law Society.  It seems that an estate need not just have ties to the UK, but the extent of a firm's expertise in a specific jurisdiction would have to be assessed.

Interestingly, some of the detective work can be done by amateur sleuths: www.findmypast.com and www.ancestry.co.uk allow access to census data from the 1800s and a host of other historical information.  If genealogy is in your blood, it's a place to start.  And, as one UK law firm suggests, it might be advisable to do some of your own investigating.

Jonathan Morse

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In Scotland for my honeymoon, I encountered a few different “estates”. Hiking the West Highland Way – averaging about 12 miles a day – we passed Blackmount Lodge, in the Bridge of Orchy. The lodge, owned by the Fleming family (of James Bond fame) sits on the edge of an idyllic loch. It took a day to walk across the estate.

Fellow walkers from Britain were interested to learn that I work in estate litigation. After sorting out differences in our terminology, they asked if “heir hunters” exist in Canada. I was intrigued.

While I still do not know the extent of “heir hunting” here, I learned that Heir Hunters is a BBC series that follows probate detectives who look for distant relatives of people who have died without making a will. I have not heard of a similar program in North America.

Several UK firms track down missing relatives: Fraser and Fraser  and Title Research are two examples. About 545,000 people die in Britain every year and half of them do not have a will. As in Ontario, there are rules in Britain which dictate that when people die intestate, their estate passes to the deceased’s legal next of kin. In Britain, if there is no family, the estate falls to the Crown.  The Guardian claims that £10 million to £20 million falls to the government every year because there is no one to claim the estate. Heir hunters locate the next of kin and alert them to their inheritance; there is a finder’s fee of up to 25% of the amount.

Many people in Canada can trace their roots to the United Kingdom. Estate practitioners, if advising estate trustees, would be well served to keep “heir hunting” firms in mind. 

Thank you for reading.  Enjoy your day.

Jonathan Morse

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I have learned that only a small percentage of applications for certificate of appointment of an estate trustee, filed in Toronto, are approved without being sent back for correction.  

Some common problems associated with these types of applications are, incorrect or inconsistent references to the deceased's name, problems concerning the mailing of the application to beneficiaries who have an interest in the subject estate, incorrect calculations of estate administration tax and in cases involving holographic wills, a missing affidavit attesting to the handwriting of the deceased.  Needless to mention, most of these errors can be avoided if the application is carefully reviewed.

But what happens if the deceased's name is spelled incorrectly in the Will?  If there is an error in the deceased's name in the Will, the heading on all of the documents should reflect the correct name, followed by a statement stating "incorrectly referred to in the Will as (insert the name is it appears in the Will).  It is also important to remember, that the names of beneficiaries shown in the notice of application must be identical to the way in which their names appear in the Will.  

Thanks for reading,

Rick Bickhram

 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

You may remember that my colleague, Chris Graham, blogged on the death of the actor, Heath Ledger and the pending litigation involving his estate (Link to Chris Graham's Blog).    

It has been well reported that Ledger last made a Will in 2003, before the birth of his daughter Matilda (in 2005) and before his claim to fame.  Under the 2003 Will, Ledger left all of his possessions to his parents and sister.  He subsequently stared in several hit films which vastly increased the size of his net value.  Subsequent to his passing, the question that was considered was what would happen to Matilda, as she was not provided for in the 2003 Will?   

There had been discussion that Matilda's mother would likely commence a claim on Ledger's estate, which could have tied up the Estate in litigation for years. However, now it is widely reported that Ledger's entire estate will all go to two year old Matilda (click here for the report).  

Estate planning is like doing our taxes.  No one wants to do them, but Ledger's story teaches us an important lesson.  It reminds us of the uncertainty of death and the consequential need to ensure that our estate plans are updated to protect those that we care for.  

Rick Bickhram

 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Pursuant to Section 3 of the Substitute Decision Act, the court may direct the PGT to arrange for legal representation for a person whose capacity is in issue in a proceeding under the SDA. The SDA further states that the person so represented shall be deemed to have capacity to retain and instruct counsel. However, section 3 counsel’s position and role remains somewhat murky. In Banton v. Banton, the court considered the import of an incapable person being deemed capable to retain and instruct counsel. 

The court recognized that the position of section 3 counsel is “potentially one of considerable difficulty”. However, the court did not believe that section 3 counsel was in the position of a litigation guardian with authority to make decisions in the incapable person’s interest. According to the court, counsel must take instructions from his/her client and “must not act if satisfied that capacity to give instructions is lacking”. A very high degree of professionalism may be required in borderline cases where it is possible the incapable person’s wishes may be in conflict with his/her best interests and counsel’s duty to the court. The phrase offers precious little guidance to section 3 counsel, but does sound a cautionary note. In the circumstances, perhaps the best advice is for section 3 counsel to fully explain the situation to the court and ask the court’s advice and direction. 

Finally, as an aside, the Ontario Government has now introduced legislation that would allow people to apologize with impunity. In other words, an apology will not be held against you in court. The hope is that “The Apology Act” will go a long way to defusing a contentious situation before litigation results. Sorry may, in fact, go a long way.

As always, thanks for reading.

Justin

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As I am sipping on my coffee this morning, I am thinking to myself, who can commence a will challenge? 

A will challenge can be commenced pursuant to 75.06(1) of the Rules of Civil Procedure. Rule 75.06(1) is a procedural remedy that permits any person who appears to have a financial interest in an estate to apply for directions or move for directions in another proceeding.   This begs the question, who is considered to have a financial interest in an estate? This issue was addressed in the Ontario Superior Court (Divisional Court) decision of Smith v. Vance.

In Smith, the Deceased died on October 27, 1995, leaving a will dated January 5, 1994 which named the applicants as the estate trustees.   A notice of objection was filed by three individuals who were cousins of the deceased through marriage. The objection was subsequently struck by the Honourable Justice Perras during the motion for directions on the grounds that the objectors did not have a financial interest in the subject-Estate. In this hearing, the objectors appealed this decision.

The objectors asserted their financial interest in the Estate based on their close relationship with and their physical and financial assistance for the deceased. There was also an earlier destroyed will in which the objectors were named beneficiaries. Finally a letter was allegedly written by the deceased wherein she acknowledged that the objector will have an interest in her estate.

The court acknowledged that a financial interest is not defined in the Rules of Civil Procedure. In such cases, words should be taken by its natural meaning. Black's legal dictionary defines financial interest as an interest equated with money or its equivalent. The court held that claimants must do more than simply assert an interest. They must present sufficient evidence of a genuine interest and meet a threshold test to justify inclusion as a party. The interest need not be conclusive evidence at that stage but must be evidence capable of supporting an inference that the claim is one that should be heard. 

If the evidence offered by an objector is capable of supporting an inference that the claim raises a genuine issue, and thus is one that should be heard, the objector is entitled to standing and should be granted permission to be added as a party. The appeal was allowed and the order by the Honourable Justice Perras was set aside.

I hope you had fun reading today's blog. Until tomorrow,

Rick Bickhram

• Email This
• Print
• Comments
• Trackbacks
• Share Link

There is the view by some that issues surrounding the interpretations of Wills can be mind-numbing.  From time to time I tend to enjoy dusting off my book of consolidated estate statutes and reviewing some of the basic tenets of estate law, which makes our area of practice so dynamic.

The issue of a failed gift is a common subject in the context of will interpretations. The Ontario Legislature has considered failed gifts in sections 23 and 31 of the Succession Law Reform Act.

In essence, Section 23 states that unless a contrary intention appears in the subject-will, when a devisee or legatee predeceases the testator, the failed gift falls into the residue of the testator’s estate. 

Section 31 is commonly referred to as the "anti-lapse provision."  Section 31 prevents devises or bequests from failing by virtue of the devisee or legatee predeceasing the testator. In such a scenario, a gift is saved if the devise or bequest was left for a child, grand-child, brother or sister of the testator and the pre-deceased devisee or legatee died leaving a spouse or issue who survived the testator. If these conditions have been met, the devise or bequest will not fall into the residue, however it will take effect as if it had been made directly to the spouse or issue of predeceased devisee or legatee. 

Thank you for reading,

Rick Bickhram

• Email This
• Print
• Comments
• Trackbacks
• Share Link

When an irresistable force meets an immovable object, we appeal to the Supreme Court of Canada. 

In Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, the force is the Personal Information Protection of Electronic Documents Act ("PIPEDA") and the object is solicitor-client privilege.  Section 12 of PIPEDA grants the Privacy Commissioner express statutory power to compel a person to produce any records that the Privacy Commissioner considers necessary to investigate a complaint “in the same manner and to the same extent as a superior court of record”.  The issue in Blood Tribe was whether this conferred a right of access to documents protected by solicitor-client privilege.  The Court held unanimously that the broad grant did not contain the requisite specific express authority to override privilege.

The Court stated the rule that "general words of a statutory grant of authority to an office holder such as an ombudsperson or a regulator do not confer a right to access solicitor-client documents, even for the limited purpose of determining whether the privilege is properly claimed.  That role is reserved to the courts.  Express words are necessary to permit a regulator or other statutory official to “pierce” the privilege." 

The Court also noted that "while the solicitor-client privilege may have started life as a rule of evidence, it is now unquestionably a rule of substance applicable to all interactions between a client and his or her lawyer when the lawyer is engaged in providing legal advice or otherwise acting as a lawyer rather than as a business counsellor or in some other non-legal capacity."

Speaking of the Supreme Court of Canada, the law you're looking for just might be in the "unreported judgments" section of the Supreme Court's user-friendly website.  How does a Supreme Court decision go unreported?

Have a great day,

Chris Graham

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Checklists are wonderful things when it comes to the practice of law (list makers would argue that that is true in life as well). In today’s busy practice, a checklist can ease the troubled legal mind.

I was looking at several estate planning information checklists earlier this week. It is worthwhile to highlight some issues/items that can be easily overlooked but which a thorough solicitor should ensure is on his/her checklist:

·         If you are acting for both spouses/partners, advise the clients that you cannot act for one at a later date without the other’s knowledge;

·         Is the estate trustee to manage funds for minors and distribute monies to the guardian for care, maintenance and education of minor children. Who is the guardian;

·         If they can be transferred, who gets air mile/loyalty points. What about transferable equity in hunting/fishing lodges or sports clubs;

·         Joint Assets and the presumption of a resulting trust – is there a clear intention of ownership;

·         For foreign property, consider the necessity of executing a separate will or appointment of a local estate trustee;

·         Ensure every life interest is coupled with a remainder interest; and

·         Ensure any charitable organization named as beneficiary is still in existence and properly described.

Have a great weekend and for all those skiers out there, let it snow, let it snow, let it snow.

Justin

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In yesterday’s blog I noted that my blogs this week would, at least in part, address preparation for trial in a contested passing. Today’s blog comments on certain aspects of trial preparation (the parties, setting the matter down for trial and documents/productions).

The issue of whether all of the parties who ought to be involved in the passing are involved, and, if so, whether any of the parties who do not have representation need representation, must be considered. In considering who the appropriate parties are, or should be, the following questions might be asked: Are there self-represented parties? Have they been notified of all matters related to the proceeding? Has any party filed a Notice of No Objection to the accounts? Has anyone filed a Statement of Submission of Rights (if so, have they been served by the plaintiff with written notice of the time and place of the trial)? Is a minor involved (Rule 7.03(2), The Office of the Children’s Lawyer)? Is there an adult party who is disabled (Rule 7, The Office of the Public Guardian and Trustee)? Is a representation Order necessary (Rule 10).

Regarding the scheduling of the trial, an order of the Court for directions, or otherwise, at any pre-trial stage, or at the pre-trial conference might address same. It may be that the date of the trial, fixed in its length, is to be fixed by the Registrar on a date mutually convenient to the parties. If, on the other hand, the proceeding is to be set down for trial, Rule 48.01 of the Rules of Civil Procedure allows for the proceeding to be set down for trial after the close of pleadings and when a party is ready for trial. In any case, inquiries should be made with the Court office where the trial is to take place to determine what, if any, forms need to be filed with the Court to confirm that the trial is to proceed.

Regarding the preparation of documents/productions for trial, it is critical that the documents in respect of the proceeding be organized prior to trial. If the documents necessary for the trial are not in counsel’s possession when preparing for trial, for whatever reason, they should be obtained prior to trial. Such documents include, but are not limited to, all pleadings, the estate accounts, certificate of appointment, prior Judgments for passing of accounts, all Orders regarding the passing of accounts, all Notices of Objections (and withdrawals), Statements of Submission of Rights, Consents/Releases of any party, Affidavits of Service and the documents exchanged between the parties as a result of the Rules of Civil Procedure, any agreement of the parties and/or Court Order. 

Also ensure that all issues of privilege regarding the documents are dealt with prior to trial.

Lastly, ensure that you have the originals of your client’s documents unless they are not available. If originals are not available, know why they are not available.  

Thanks for reading.

Craig

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 In Kaplun v. Kaplun, Brown J. of the Ontario S.C.J. reminded all counsel of certain basic expectations that a court has of counsel who appear in Motions Court:

1.      Be on time and ready to start at 10:00 a.m. Tardiness displays a lack of respect for the court, its staff, and fellow counsel;

2.      Counsel should always be courteous and civil to opposing counsel.

3.      Ill feelings that may exist between clients, particularly during litigation, should not influence counsel in their conduct and demeanour towards opposing counsel.

4.      When scheduling a motion, counsel should consult the responding side before setting a date.

5.      Requests for an adjournment should be communicated to opposing counsel well in advance of the hearing date. The not uncommon practice of adjournment by ambush is unacceptable;

6.      Counsel should follow the two basic rules of courtroom etiquette:

(a)   When one counsel is standing to make submissions, the other should sit down. Success in Motions Court does not depend on the last person standing; and

(b)   Avoid "Jack-in-the-box" advocacy. Standing up to interject repeatedly during opposing counsel's oral argument on a motion is rude and wastes time. Counsel should deal with any disputed matter and respond in a reply argument.   

7.      Finally, Brown J. states that for Motions Court to work efficiently and fairly, the court depends upon counsel observing the three “Cs”: courtesy, civility and co-operation.

Thank you for reading.

Justin